IN THE CASE OF:	  

		BOARD DATE:	  22 May 2014

		DOCKET NUMBER:  AR20130017011 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests his bad conduct discharge be upgraded to a general discharge under honorable conditions.

2.  The applicant states "at the time I was discharged it was listed as undesirable"; however, he understood it could be upgraded to a general discharge.  He states, in effect, when his father passed away he tried to get a compassionate discharge to take of his mother, because she had become very unstable.  But, his request for a compassionate discharge was denied and he went absent without leave (AWOL) to take care of his mother.  He turned himself in to military authorities and he received the discharge that he has, although he did not agree with it.  He thinks the discharge was inappropriate.

3.  The applicant provides no additional evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 30 June 1969, he enlisted in the Regular Army for 3 years.  

3.  On 26 November 1969, he was assigned to the 44th Engineer Battalion in Korea.  On 27 February 1970, he was granted 30 days of emergency leave.  His leave address was in Brewer, ME.  

4.  On 7 April 1970, he was attached to Headquarters and Headquarters Company (HHC), 18th Engineer Battalion at Fort Devens, MA while awaiting orders.  On 12 May 1970, orders were issued assigning him to HHC, 
18th Engineer Battalion, effective 17 May 1970.

5.  He accepted nonjudicial punishment (NJP) on:

* 12 November 1970, for being absent from his appointed place of duty
* 27 November 1970, for unlawfully entering the motor pool and stealing five gallons of MOGAS (motor gasoline)
* 29 December 1970, for failing to go at the time prescribed to his appointed place of duty

6.  On 8 January 1971, he was assigned to the 642nd Engineer Company at Fort Devens, MA.

7.  He accepted NJP on:

* 28 January 1971, for failing to obey a lawful order from a noncommissioned officer
* 10 February 1971, for failing to go at the time prescribed to his appointed place of duty

8.  On 31 March 1971, he was tried before a summary court-martial.  He pled guilty and was found guilty of being AWOL from 3 - 7 March 1971.  

9.  On 10 June 1971, he accepted NJP for:

* being AWOL 1 - 7 June 1971
* violating a lawful general regulation by operating an unregistered vehicle with illegal plates, an invalid state inspection sticker, and bald front tires on Fort Devens, MA

10.  On 4 June 1973, he was tried before a special court-martial.  He pled guilty and was found guilty of being AWOL from on or about 14 June 1971 to 29 July 1972.  His sentence consisted of confinement for 6 months and a bad conduct discharge.  On 20 June 1973, the convening authority approved the sentence but suspended the 6 months of confinement for a period of 6 months.

11.  Headquarters, Fort Devens, Fort Devens, MA, Special Court-Martial Order Number 4, dated 11 March 1974, stated the applicant's sentence had been affirmed and ordered his sentence to be executed.

12.  On 29 March 1974, the applicant was issued a bad conduct discharge.  He completed 2 years, 10 months, and 15 days of active service.  He also had 394 days of lost time and 293 days of lost time subsequent to the expiration of his term of enlistment.

13.  There is no indication he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

14.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 11 established policy and procedures for separating members with a dishonorable or bad conduct discharge.  Chapter 11 states a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and the appellate review must be completed and the affirmed sentence ordered duly executed.

	b.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

15.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction.  Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.


DISCUSSION AND CONCLUSIONS:

1.  He contends he tried to get a discharge after his father passed away, but he was turned down so he went AWOL to help his mother.  The record shows he was authorized 30 days emergency leave from Korea on 27 February 1970.  He was not required to return to Korea and he was ultimately assigned to HHC, 
18th Engineer Battalion at Fort Devens, MA on 17 May 1970.  It appears the Army attempted to assist him by assigning him as close to home as possible.  His first period of AWOL did not commence until 3 March 1971, over a year after his period of emergency leave.  

2.  He received a bad conduct discharge for being AWOL, which commenced over 15 months after he returned from Korea on emergency leave.  He provided no evidence he went AWOL to assist his mother during this period of AWOL.

3.  The evidence shows the applicant’s trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

4.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

5.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor or achievement that would warrant special recognition.  The applicant's misconduct clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His service was unsatisfactory.  

6.  Based on the foregoing, there is an insufficient basis to upgrade the applicant's bad conduct discharge.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ____x___  ____x ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   _x______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20130017011



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ABCMR Record of Proceedings (cont)                                         AR20130017011



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